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Tuesday, 11 October 2016

Again on the proposal(for a directive on copyrightin the Digital Single Market)

As reported and covered in a
number of previous posts[here,here,here], in
the context of its Digital
Single Market Strategy (DSMS) on 14 September last the EU
Commission unveiled a new copyright package, consisting
of a number of proposals aimed at improving the existing EU copyright
framework.

Among
other things, the DSM Directive intends to introduce into the EU copyright
framework a new related right in press publications.

Article
11 of the directive states:

"1. Member States shall provide publishers of press
publications[what
is to be intended by 'press publications' is clarified at Recital 33 of the
directive]with
the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC
for the digital use of their press publications.

2. The rights referred to in paragraph 1 shall leave intact and
shall in no way affect any rights provided for in Union law to authors and
other rightholders, in respect of the works and other subject-matter
incorporated in a press publication. Such rights may not be invoked against
those authors and other rightholders and, in particular, may not deprive them
of their right to exploit their works and other subject-matter independently
from the press publication in which they are incorporated.

4. The rights referred to in paragraph 1 shall expire 20 years
after the publication of the press publication. This term shall be calculated
from the first day of January of the year following the date of
publication."

However, the drafting of
this provision and related recitals (31 to 36) raises a number of technical
questions, as well as a practical, fundamental, one.

When less may be actually more

The technical questions

A first question may be why
Article 11 refers to Article 3(2) of the InfoSoc Directive[making available right]instead of Article
3(1) of the same directive[right
of communication to the public], also considering that the
last sentence in Recital 33 refers to the right of communication to the
public.

The question is not just pedantic
academic, because the rights of communication to the public and making
available to the public are not the same thing. The Court of Justice of the
European Union (CJEU) has made this clear, more recently in itsC
Morejudgment[here].

A second point is that it is
not entirely clear why Recital 33 contains a reference to hyperlinks, by saying
that those which do not amount to acts of communication to the public are
outside the scope of the new right.

First, the new related right
is not about the right of communication to the public, but rather reproduction and
making available to the public.

Secondly, if the new related
right does not go beyond copyright[as
Article 11(2) stresses], surely saying that "protection
does not extend to acts of hyperlinking which do not constitute communication
to the public" is not really necessary.

Finally, hyperlinks are not
everything the right is about: Article 11 refers to the "digital use"
of press publications. A "digital use" may range from the scanning of
press publications to the display of relevant excerpts and everything in
between.

Charlie is scared ... but is there anything to really fear?

A practical question

Last week I had the chance
to speak to a number of people, both stakeholders and legal practitioners, over
meals and at events. While coming from different positions in relation to the
current EU copyright debate, they all seemed to have the same question:

First, the new press
publishers' right is certainly not broader than copyright (and is certainly
shorter). Article 11 is clear in saying that the rights of reproduction and
making available, along with related exceptions and limitations, are to be
intended in the same sense as the same rights and exceptions under the
copyright framework. So, to one who already owns the copyright to a press
publication, will ownership of also the press publishers’ right mean anything
(useful)?

Secondly - as a matter of
practice and possibly with the exclusion of certain free-lance journalists who
manage to retain ownership of copyright in their pieces - press publishers
already own the copyright to the press publications authored by their
journalists-employees. And copyright already provides a fairly powerful tool.
Just to provide an example, yesterday I re-read the CJEU decision inInfopaqin preparation for the second IP
class with my Southampton Law School undergraduate students.

Readers will promptly
remember that that case - a reference for a preliminary ruling from Denmark -
concerned indeed press publications scanned without the prior consent or
relevant rightholders, ie press publishers.

The CJEU ended up saying
that merely "storing an extract of a protected work comprising 11 words
and printing out that extract, is such as to come within the concept of
reproduction in part within the meaning of Article 2 of Directive 2001/29/EC
..., if the elements thus reproduced are the expression of the intellectual
creation of their author".

Would have
things been any better if - besides copyright - press publishers could have
also invoked the ad hoc press publishers' right in an Infopaq-like scenario?

Conclusion

All in
all, it is unclear whether and to what extent the press publishers' right will change
things in relation to digital uses of press publications.

Also the
reference to the CJEU decision inReprobel[here] in Recital 36 seems a bit out of context [and possibly only makes sense if, instead of Article 11, it is read as referring to Article 12], since that
decision nothing had to do with digital uses of press publications. Reprobel was completely a non-digital
case concerning private copying levies in printers.

In the majority of cases the
addition of the press publishers’ right extra-layer of protection is unlikely
to make a difference. But am I missing
something here? As
always, readers' feedback is very welcome!

3 comments:

Would the press publishers right really make any difference? Probably not in countries where copyright in works created by employees belongs to the publisher, but it certainly might make a difference in continental Europe where the situation is different.

We should also remember that not everything printed in a newspaper is automatically protected by copyright (outside the UK). A short news item is not a "work" and thus not necessarily protected by copyright. The publishers right would presumably also cover such items.

Would the proposed publishers right be retroactive (would it apply to everything published during the past 20 years)? This might also make a difference.

ad technical questions: you referred to recital 33 and "communication to the public". isn't it the same with recital 38 and "thereby going beyond the mere provision of physical facilities and performing an act of communication to the public". kind of a useless/irritating/wrong mentioning there too, isn't it?

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